Share this

Marc A. Thiessen writes that Chief Justice John Roberts' health care ruling is just the latest surprise from Supreme Court justices nominated by Republican presidents. Thiessen, a former George W. Bush speechwriter, cites various "liberal" rulings by Roberts, Justice Anthony Kennedy and former Justices David Souter and Sandra Day O'Connor: "Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions."

Supreme Court justices are not vulgar enough to “follow the election results.”

Sophisticated, important people in Washington D.C. are surrounded by other sophisticated important people whose entire world view bends towards the care and feeding of ever larger government. Walk by the buildings housing the powerful lobbying interests. How many press for higher spending and more state power…perhaps 99 percent. Probably more.The goal of the modern “Friends of Government “ movement — the phrase aptly used to describe Tories during the American Revolution — is to create a virtual cocktail party where the new kids in town assimilate to the dominant statist culture.

Supreme Court justices don’t have to worry about getting elected by the peasants outside the Beltway. They are tempted to please the court.

That is why the pressure of Washington culture changes some Republicans and never changes Democrats…the Democrat appointees were already fond of Kool -Aid.

Thiessen is absolutely right - more GOP than Dem SCOUTS picks go awry - but you have to be careful about what "going awry" means. Judging isn't, or shouldn't be, a "political" matter. Yet since the New Deal "constitutional revolution" that followed FDR's infamous 1937 Court-packing threat, that's what it's too often been.

Democrats have understood and championed that. Indeed, they make no bones about reading the Constitution, which was written largely to limit government, as authorizing Congress to do almost anything. By contrast, Republicans have been uneven at best in reading the Constitution. Their initial reaction to the New Deal juggernaut arose only in the mid-1950s. Reacting to the Warren Court's "rights revolution," they called simply for "judicial deference" to the political branches, the very branches that were giving us ever more government. In the late '70s, however, a more sophisticated "classical liberal" school began to emerge in Republican circles, calling for "judicial engagement" to better check out-of-control government, but it took some time before that view became a serious force. Yet it was clearly the force at the core of the opposition to ObamaCare.

The upshot for today's question, however, is that this ambivalence - and, let's be honest, obliviousness - among many Republicans about basic constitutional theory and history has led to a fractured and often uninformed judicial nomination process. Do we need any better example than George W. Bush's selection of Harriet Miers, or his father's selection of David Souter? To be sure, the dominant political and legal culture play a part in explaining the differences between Republican and Democratic nominees. On balance, however, Democrats have had a better grasp than Republicans of their agenda and the methods needed to achieve it. But if the blowback Chief Justice Roberts is now receiving is any indication, that may be changing, and that would be good.

Has Thiessen ever heard of Byron White? JFK's only appointee to the Supreme Court, White became a reliable conservative vote on many issues over the years. And no one could argue that William Rehnquist ever strayed an iota from following the reactionary line, and neither have Scalia, Thomas and Alito - all appointed by conservative Republican presidents. Also, let's not forget that one or two supposedly "liberal" votes by Roberts does not change the fact that he is a reliable part of the rightwing bloc on the court the overwhelming majority of the time.

Public Service not politics and a knowledge of constitutional law should guide the decision making of the Court. While I may disagree with Justice Roberts on his decision, I respect the fact that he and the other Republican appointed justices have proven once again that they are independent in their thinking and not lockstep with political party views and that, in the end I submit, is what we hoped for from the United States Supreme Court.

Thiessen is a conservative columnist, saying exactly what one would expect a conservative columnist to say about the judiciary, especially when a decision has gone against them. The right wing has long been on a mission to discredit and destroy the role of the courts as the check and balance the Constitution intends them to be. At the same time, they often hypocritically propose that the solution is to make the courts even more political by electing judges.

Sen. Jeff Sessions summed up this point of view, "This ‘Washington-knows-best’ mentality is evident in all branches of government, but is especially troublesome in the judiciary, where unelected judges have twisted the words of our Constitution to advance their own political, economic, and social agendas."

That conservative drumbeat has convinced many voters that the Court has become increasingly political. Recent polls show that two-thirds of Americans think politics played too great a role in the Supreme Court's health care ruling.

And indeed politics probably did play a role, as they always have. The Court didn't expand civil rights to African Americans until it was clear that the American people were becoming more open to it. And at the time (1954) the Court decided Brown v Board of Education declaring that school segregation unconstitutional, conservatives made the same case against the judiciary--saying it was too "political." They even tried to impeach Chief Justice Earl Warren.

The fact is those "liberal" justices are actually the most "conservative" in the sense of applying the Constitution's basic premise that liberty and justice applies to everyone, regardless of where we live, or what color or gender we might be. And Theissen and his conservative buddies ought to be rejoicing that they held four votes against the Affordable Care Act while their usual fifth, Chief Justice Roberts, laid the groundwork to roll back the Constitution's Commerce Clause and further lean toward states rights in their jurisprudence.

It's hard to find a well qualified lawyer who will blindly follow the ever changing mess that is modern conservatism. It rarely has basis in fact let alone law. That said the Court has shifted to the right in recent years and, health care ruling aside, it appears that trend will unfortunately continue.

One ruling goes against the wishes of conservatives, and all of a sudden they are screaming that John Roberts is playing hacky sack and leading drum circles on the steps of the Supreme Court. He really went uber-lib on Citizens United, didn't he? Pre-Roberts, Bush v. Gore was so liberal their robes were patchouli-scented for days on end, right, comrades? Sweet Mother Love Bone, conservatives: are you so shocked that you couldn't buy a decision the same way you buy elections that now you are saying you have been bamboozled with every Republican appointment?

The whole point of receiving a lifetime appointment to the court is so that justices will not be influenced by the political ebbs and flows of the tide that washes upon Capitol Hill. Unfortunately, this standard has recently been tarnished. Justice Scalia meeting with congressional Republicans and the wife of Justice Thomas running a conservative PAC are not exactly the blind justice standard that keeps with the intention of the court.

John Roberts stated in his confirmation hearings that he saw the role of the court as that of an umpire, calling balls and strikes through interpreting the law. Republicans thought they had everything they needed to get their way to win the healthcare game, and now that they have lost again, their complaint is that they paid for the umps and still didn't get the call. But just like in baseball, McConnell, Cantor and crew can kick all the dirt they want, but the call won't change, and we will have our chance to eject them in November.

Thiessen’s premise is provocative and probably pretty accurate. I still believe history will view Roberts as a conservative. I would argue that for a period of time, Republican presidents felt compelled by mainstream media to nominate someone “fair and balanced” with a conservative bent. Simultaneously, Democratic presidents were under no such pressure. On the other hand, Souter might have just been a mistake by Bush and his team.

Conservatives are conveniently forgetting about all the good times they've had with the chief jstice through the years and the victories he's handed them: Citizens United, the Second Amendment, Wal-Mart class action lawsuits, and tough anti-affirmative action stances, just to name a few. Justice Roberts was also a one-time member of the Federalist Society, although he has no recollection of this (wink, wink). So Marc Thiessen now thinks that Roberts, along with Kennedy, Souter and O'Connor, are closet liberals? I'll give him Souter but O'Connor and Kennedy essentially voted his former boss George W. into the White House. He should be thanking them.

I'm still not convinced that Sonia Sotomayor isn't a closet conservative. Give her a couple more years on the bench with Scalia. His boyish charm can win over anyone.

Another reading of the so-called "defections" of judges appointed by Republicans is that fair jurisprudence actually leans center-left. Except for the most ardent ideologues willing to contort the Founder's intent to serve a narrow agenda, even politically conservative judges know the Constitution is meant to confer rights and benefits, not restrict them. Perhaps the sour grapes on the Right come not from a few failed efforts at vetting but from the creeping realization that their whims are on the wrong side of justice.

The robe rage directed at Justice Roberts from the four disgruntled dissenters upset that a Republican justice upheld a Republican mandate enacted by a Democratic Congress and president is stunning to behold. Spilling selective secrets of the judicial monastery to settle a score and prove to their conservative base that they somehow were betrayed by his burst of independent thinking says more about them than the alleged apostate. Marc Thiessen is wrong - both Republicans and Democrats have been "surprised" but surprised Democrats don't leak Court proceedings or call for impeachment.

Beyond the obvious pettiness of sore losers, the conservative justices' robe rage reveals their belief that individual liberty apparently does not extend to the critical thinking capacity of a Supreme Court Justice. Mitt Romney echoed that sentiment when he said "I certainly wouldn't nominate someone who - I knew - was gonna come out with a decision I violently disagreed with or vehemently, rather, disagreed with".

That Romney has a violent vehement disagreement with the constitutionality of his own health care mandate is explained by politics. But his Roberts rejection raises a larger question: can or should any president appoint a justice expecting a 30 or 40 year jurisprudential rubber stamp? Going forward, expect a whole new query into judicial confirmation hearings beyond the shopworn "God guns and gays" litany: "would your rulings be influenced by critical thinking or not?" or in media parlance "how if at all would your thinking be affected by the New York Times or the National Review?"

The great conservative philosopher Russell Kirk once wrote that conservatism is not an ideology, but rather a state of mind. Sadly, for many who either are part of the modern conservative movement - or who admire its success from the outside - it's sad to see how ideology and dogma have now taken over most of the political life on the right. This is no longer the conservative movement of William F. Buckley. It's the rightwing echo chamber of Fox News.

When thinking about the Supreme Court and expectations of conservative appointees, Kirk's maxim is very relevant. Among the remaining bastions of serious conservative political thought -- forums like the Federalist Society -- legal thinking and debate over Constitutional questions is alive and well. (The tea party know-nothings have not taken over completely.) And contrary to the perceptions of many, there is a great deal of disagreement among serious conservative legal thinkers on important Constitutional questions. So when a conservative like John Roberts or Anthony Kennedy votes in a way that doesn't align with the Republican party's political agenda, they are not necessarily being "inconsistent" or somehow "disloyal." The are representing a much more important conservative tradition that rejects ideology and prides itself on independence, philosophical reflection, the exchange of ideas, and creative deliberation.

Thiessen makes a correct observation that Democrats have been flawless in appointing reliable liberals to the court where Republicans, more often than not, appoint justices who vote with the other side on critical decisions.This makes sense to me. One party promotes progressive ideas, one party resists them. But progressive thoughts come to the fore more often than not as a natural course in human development. If not, we would be hiding out in caves yet or as my friend says, we would be flying the British flag!

Conservatives may not win every time at the Supreme Court, but the have been doing better than liberals overall. Under Chief Justices William Rehnquist and John Roberts, the Court's decisions have moved rightward. Moreover, while Republican presidents are able to appoint some very strong conservatives, like Antonin Scalia, Samuel Alito and Clarence Thomas, Democratic presidents routinely exclude very strong liberals from consideration. Indeed, not one of the Democratic appointees voted for a right for terminally ill patients to end their lives with prescription medication when that issue was before the Court, and no justice since the departure of William Brennan and Thurgood Marshall from the Court has taken the position that capital punishment is always unconstitutional.

Even the Affordable Care Act decision does not support Thiessen's argument. Roberts may have disappointed conservatives, but Stephen Breyer and Elena Kagan disappointed liberals by joining Roberts' opinion on the constitutionality of the Medicaid expansion.

Dewey ClaytonProfessor of Political Science, University of Louisville :

No, that formulation makes no sense whatsoever. People appear to have lost sight of the constitutional role of the Court. The framers of the U.S. Constitution purposely created an independent judiciary so that each time a justice made a decision, she did not have to look over her shoulder to make sure that the president who appointed her approved of her vote. Throughout the history of the Court, Supreme Court justices have ruled differently than the presidents who appointed them. For instance, in 1953 when Chief Justice Fred Vinson died of a heart attack, President Dwight Eisenhower, a Republican, appointed Earl Warren, a Republican, as the new chief justice. Warren immediately took command and forged a unanimous Supreme Court decision in the famous public school integration case Brown v. Board of Education (1954). President Eisenhower later remarked that it was “the biggest damn-fool mistake I ever made.”

But that is a good thing: our nation needs an independent judiciary. Chief Justice Roberts has always stated that he felt one of his roles as chief justice was to act as an umpire. When individuals are appointed to the court, they should lose their political labels and replace them with one label: Supreme Court justices.

During his confirmation hearings in 2005, Chief Justice John Roberts declared that he was “not an ideologue” and that he did not have “an overarching judicial philosophy.” He added that he tended to decide cases “from the bottom up rather than the top down.”

This seems to be the approach that Roberts took in the health care reform case or “Obamacare,” as it is known. The thumbs up by the Supreme Court in this case was surprising, but more so because the deciding vote was that of Roberts. But what Roberts seems to have done in that case is dissected the rule, deciding that some parts were not constitutional, such as using the Commerce clause as a venue, but that the taxing authority of the federal government gave it a go. That was his way of deciding the case on pragmatic grounds -- something he vowed to do in his confirmation hearings.

This is probably the first time that Roberts has deviated from a strict conservative stance, but it was bound to happen at some point, just as Justices David Souter and Sandra Day O’Connor voted sometimes more liberally in their day. They were not ideologues either.

First, a note on “voting with the other side”: let’s not forget that Clinton v Jones, requiring the president to proceed with burdensome (and nearly presidency-destroying) civil discovery in the sexual harassment case, was a 9-0 decision against the president, and that the Court’s decisions this term against the Obama administration’s positions on a ministerial exception to civil rights statutes and the legality of warrantless GPS tracking were also unanimous in their outcomes. So I question Thiessen’s conclusion.

That said, conservatives simply demand more activism from their justices than do liberals. No Democratic president has replaced Justices Brennan and Marshall with nominees as willing to expand precedent and the rights guaranteed to individuals under the Constitution; other than the incremental progress made (and yet to come) on LGBT equality issues, liberals are more concerned with protecting existing precedent from erosion, and Justices Ginsburg, Breyer, Sotomayor, and Kagan have been up to that task. (However, for example, for the first time in decades there is no one on the bench outright opposed to the implementation of the death penalty under all circumstances.)

The conservative jurisprudential project is much larger, however, whether it’s in reducing access to the courts by making it more difficult for victims to form class actions and avoid corporate-favored arbitration schemes, or radically reworking the balance between the federal government and the states, or gutting the underpinnings of campaign finance regulation and voting rights protections, or overturning New Deal era precedents dealing with federal power, or upsetting the balance between Church and State. Conservatives shouldn’t be surprised when Justices’ careful considerations of such longstanding, bedrock jurisprudence lead to different outcomes than what might happened in the consequence-free environment of a Federalist Society debate.

The Chief Justice, in his ACA opinion, did exactly what conservatives had claimed they wanted from their judges: he didn’t judge the wisdom of the policy; he didn’t “legislate from the bench” or invent new rights not contained within the constitutional text. He just considered the Court’s precedent and applied it, determining that the law was constitutional. It’s the four dissenters who legislated from the bench and invented new constitutional distinctions to reach their preferred policy outcomes; they were the activists.

When the choice is between the 14th century and the 16th century, it’s hard to argue that GOP-appointed judges or justices who opt for 16th century jurisprudence are liberals in black bathrobes. There was plenty of poison in Roberts’ pen in his latest ruling, which brought us almost to the early 19th century (minus the commerce clause), but he’s voted consistently for the landed aristocracy (14th century). So I wouldn’t get too excited about Roberts as the new Souter. He’s just Clarence Thomas with an extra 50 IQ points, a few less pubic hairs in his Coke, and fewer known conflicts of interest that would never lead either man to recuse himself, as Thomas should have done on this ruling.

Yes, the liberals are soooo true to form and no one expects them to do anything but be liberal. But if a conservative justice were to be that lock step, they would be demonized for being conservative and perhaps they DO feel pressure to err on the side of the middle just to prove that they are truly apolitical. The liberals don’t care.

Souter….in my opinion, one of New Hampshire’s biggest embarrassments to conservatives.

More POLITICO Arena

About the Arena

The Arena is a cross-party, cross-discipline forum for intelligent and lively conversation about political and policy issues. Contributors have been selected by POLITICO staff and editors. David Mark, Arena's moderator, is a Senior Editor at POLITICO. Each morning, POLITICO sends a question based on that day's news to all contributors.